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Suit Aims to Halt Horseracing Integrity and Safety Act

Opponents of a new federal law that would move oversight of horse racing medication rules and drug testing from state regulators to an authority under the Federal Trade Commission by the summer of 2022 have shifted their efforts from the political arena to federal court.

The National Horsemen’s Benevolent and Protective Association filed a lawsuit March 15 that aims to prevent the Horseracing Integrity and Safety Act of 2020 from being implemented. Throughout the political process the National HBPA contended that HISA was unconstitutional while the bill’s supporters countered that it would withstand judicial scrutiny.

That scrutiny is now scheduled to take place. The lawsuit (National Horsemen’s Benevolent and Protective Association v. Black), filed in the United States District Court for the Northern District of Texas, argues that HISA is unconstitutional in handing the power to regulate horse racing over to a private group.

Peter Ecabert, general counsel for the National HBPA, said there are fundamental constitutional flaws in HISA, which was passed in December as part of an omnibus bill and signed into law Dec. 27 by President Trump.

“This is not some last-ditch, Hail Mary effort to prevent legislation we opposed from taking effect. This is about our core mission, ‘Horsemen Helping Horsemen.’ We must do our due diligence to make sure that such a complete restructuring of our industry is not only in its best interests but also is constitutional,” Ecabert said in a statement. “Throughout the shameful process of this march to pass this legislation, there was a high degree of HISA’s supporters simply telling owners and trainers to ‘trust us’ without addressing our legitimate concerns. 

“The bill was passed without proper vetting and gives to a private authority broad government powers over our industry with little or no oversight. This legislation was ramrodded through without anyone knowing the costs of creating and maintaining this additional bureaucracy and who would pay for it.”

Supporters of HISA said they welcome the court’s scrutiny and expressed confidence that it will withstand the legal challenge. The Jockey Club, which strongly supports HISA, expressed confidence in its constitutionality.

“We are not at all surprised by the lawsuit filed against HISA today by a number of affiliates of the National HPBA,” The Jockey Club said. “We are confident that the law is constitutionally sound and legal, as it is patterned precisely after other long standing law.”

Under the legislation, the Horseracing Integrity and Safety Authority would be created to develop and implement an “anti-doping and medication control program and a racetrack safety program.” The Authority would seek to enter into an agreement with the United States Anti-Doping Agency, or a similar organization, to serve as its enforcement agency.

An independent nominating committee with members from business, sports, and academia has been formed and already has begun some initial work. It is tasked with selecting members of the Authority’s board as well as members of HISA committees on medication and safety.

In its legal opposition to HISA, the National HBPA has secured the critical backing of the Liberty Justice Center, which will represent the horsemen’s group for free in the federal suit. The LJC describes itself as a nonprofit, non-partisan, public interest litigation center that represents clients at no charge “to fight against political privilege.”

The LJC questions the legality of the plan to form an authority to oversee racing’s medication and testing. 

“All Americans should be concerned when Congress gives power to regulate an entire industry to a private group of industry insiders,” said Brian Kelsey, senior attorney at the Liberty Justice Center. “This goes way beyond setting rules for the sport of horse racing. This is not the NBA or the NFL. The ‘Authority’ has the power to make laws, issue subpoenas, and effectively tax owners with little real oversight. Placing that power in a private organization is illegal and must be stopped.”

Supporters of HISA note that the law requires the Authority to answer to the Federal Trade Commission. The Authority is required to submit to the FTC any proposed rule, standard, or procedure developed by the Authority to carry out the horseracing anti-doping and medication control program or the racetrack safety program. The Authority shall seek to enter into an agreement with the U.S. Anti-Doping Agency, or an entity equal in qualification, under which the entity acts as the anti-doping and medication control enforcement agency under this bill.

While Kelsey describes the Authority as “industry insiders,” supporters of the legislation note that the law goes to great lengths to require that members of this group do not have financial ties to racing.

Besides the National HBPA, also signed onto the lawsuit are state HBPA affiliates in Arizona, Arkansas, Indiana, Illinois, Louisiana, Nebraska, Oklahoma, Oregon, Pennsylvania, Washington, and West Virginia. The suit is filed against the newly created “Authority,” Federal Trade Commissioners, and the nominating committee. It asks the court to immediately stop the nominating committee from appointing board members of the Authority. 

The lawsuit asks the court to find the legislation unconstitutional and halt implementation. The complaint argues: “Federal lawmakers cannot delegate regulatory authority to a private entity,” and after citing some case law adds, “Under the private nondelegation doctrine, granting regulatory authority to a private entity violates Article I, Section 1 of the United States Constitution, which states that, ‘All legislative Powers herein granted shall be vested in a Congress of the United States.'”

The Jockey Club questioned the motivations of the HBPA’s opposition of HISA and noted that previous federal legislation has benefited horsemen’s groups. 

“It’s a shame that the National HPBA has chosen this expensive and time-consuming path, but it is consistent with their well-known pattern of conduct that has served to block or water down needed reforms that the vast majority of the equine industry and animal welfare organizations support,” The Jockey Club said in a statement. “It is worth noting that this suit is also brought by state HBPA affiliates that are the greatest beneficiaries of the earlier federal legislation, the Interstate Horseracing Act of 1978, which confers upon them virtually unlimited authority over interstate wagering on Thoroughbred races.”

Ecabert said horsemen felt the need to pursue this legal decision before the new approach is put in place.

“Not doing our due diligence now could very well have disastrous consequences in the near and long-term future for horse racing, including for owners, trainers, and horseplayers,” Ecabert said. “When a bad law is passed, you’re stuck with it. You can’t just run to your state racing commission and explain that real-life consequences hadn’t been anticipated.”